Contract Review: BlogBurst

The blog synidcator BlogBurst.com (owned by a company called Pluck) came up in conversation at FreelanceSuccess.com. The idea of getting some entity to help promote a blog and possibly, gasp, generate some revenue sounds intriguing to most writers, myself included. So I headed over and read the mandatory license agreement. Here's a walk-through of some of the sections according to my understanding (though remember I'm not a lawyer and this isn't legal advice):

1.2 In the definitions section, notice that a Publisher is any entity that has an agreement with Pluck to license material. That means potentially anyone, and you have no control over who uses what you write.

2.1 This includes the wording "you grant to Pluck and its affiliates a non-exclusive, worldwide, royalty-free, license to reproduce, distribute, make derivative works of, perform, display and disclose the Work (and derivative works thereof) for the purposes of (a) adapting the Work to fit within Publisher web sites without substantially changing its original meaning, and (b) distributing the Work (and derivative works thereof) to Publisher electronic web sites"

Non-exclusive is fine on the surface, because you can also do something with the material. But "make derivative works of" means that the company can change what you write. Yes, it has some limitations, but what does "substantially changing" mean? If you cite a news source that you like in your blog and another one runs the piece, could it replace that reference with one to its own site? I suspect so.

2.2 Pluck can give other publishers the same rights that you grant it, so you could go into competition with others licensing and selling your work - because it's royalty-free. There's another consideration that we'll catch under section 3.

3 Pluck's responsibilities are to ensure that you get a byline (though the size and placement of which - maybe far after the blog entry in a round-up of bylines - it and the publisher determines). You also are supposed to get at least one link to the web site on which your content appears. Now remember 2.2. What happens if the publisher starts sublicensing? It's not clear to me that Pluck guarantees that any further use down the chain of permission will get the same.

4.1 You can get royalties "subject to Pluck's then-current policies." But what will they be? Maybe you won't get any? (Check the site and you'll see that at the time I write this, only the top 100 blogs get any compensation.) And the agreement clearly says that you don't expect payment. It may be that Pluck wants to pay people - at least the current management team does. But what happens if they sell the company down the line? The generosity might be less obvious.

5.1 Trouble here, because we're talking about international publishing over the web. How are you doing to guarantee that your work won't violate any of the list of rights under any legal system in the world? You can't, because what may be legal under one law - take US federal law, for example - may not be under, oh, the libel laws of the U.K. or Canada. There are people who travel to other countries to sue writers because it's a lot easier than doing it in this country.

6.1 If Pluck or some of its licensed publishers do you wrong, you say that $1,000 will be the cap of what you can pursue in court - and that will barely get your lawyer out of bed in the morning.

6.2 This indemnification is not only tied to the overly broad warranties of section 5, but it has the following dangerous clause:

(b) any claim or allegation that the Work infringes in any manner any Intellectual Property Right or any other right of any third party, is or contains any material or information that is obscene, defamatory, libelous, slanderous, or that violates any law or regulation, or violates any rights of any person or entity, including without limitation rights of publicity, privacy or personality, or has otherwise resulted in any consumer fraud, product liability, tort, deceptive trade practice, breach of contract, injury, damage or harm of any kind to any third party.

According to this wording, if anyone should so much as charge you with infringing on any of his or her rights, or that something in your writing is obscene or defamatory, of that what you write violates any law or regulation anywhere in the world, you pick up all the expense tabs for Pluck, all of its affected publishers, and all of their managers.

7 The agreement stays in effect unless you terminate it - and you can only do that "by using the Terminate Account feature in the BlogBurst software." Ever try to end a recurring charge, or to stop a series of marketing emails, or anything similar by clicking the appropriate link? 'Nuff said.

8.3 "The parties consent to venue and the exclusive jurisdiction of the state and federal courts located in Austin, Texas" means that if either you or Pluck has a problem with the other, you have to take it up in Austin. That's an expensive proposition unless you live there.

8.7 Pluck can change the agreement as it wants so long as it provides you "notice," and if you send in anything new (and that might be virtually automatic since the company is syndicating your blog), you've agreed to the change. Even if it calls for retroactive changes.

8.8 Any of Pluck's affiliates gets to be included in the indemnification section, and so they could directly sue you.

It takes pluck to come up with some of these conditions, but it would take foolhardiness to agree to them.

Blogs - Backdoors to the Minds of Clients

Want to get to the inside workings of clients? Try a blog. Oh, sorry - not yours. Theirs.

I just read a story in a publishing trade magazine called Circulation Management. The topic was how many publishers are running blogs on their sites. According to a study, three-quarters of all newspapers run blogs on business-related topics.The Magazine Publishers of America has an online list of 400 blogs of member companies - go there, click on a publication title, and you get a list of at least its top blogs (though possibly not all). Highlight the blog and you see recent post headlines with a first paragraph available by selecting that story. Blogging is also a rapidly increasing trend for many companies that are trying to communicate with their customers.

I'm sure some people think immediately of how this might turn into a regular assignment, and while that might be a possibility, it's actually not the big payoff. What blogs - particularly those written by prominent staffers and top editors - provide is a window into the interests of the publications. You get a real-time clue as to what they think about and what trends they see, by virtue of the content. Forget about only looking at back issues that may or may not represent old editorial regimes or discarded concepts. As things change, you'll see it on a daily or, at worst, weekly basis. Use it well and you'll have a head start to a winning query.

Finding Business that Fits

Many writers try to fit themselves into the perceived needs and expectations of clients - "I'm a specialist in the dietary healthcare needs of left-handed chimpanzees, as you can see from this clip (or brochure)."

Meeting the need of your client or prospect is vital. If you don't, they won't hire you. But before you rush out after every potential work lead, remember that before you fit yourself to the client's needs, you fit the client to your needs. Some won't pay enough, while others might pay enough, but wait for publication, leaving you to effectively fund their accounts payable department. A magazine might want to keep you from writing for its direct competitors, even if those titles are important revenue sources. One corporation buyer may keep changing her mind and always asking you to jump through hoops and toss your plans to the wind because she never made any plans of her own.

You can't always tell what a client will be like before you first do business with it, but after one assignment, you should have a pretty good idea. Once you know that its requirements don't fit yours, don't keep doing business there. Get one client that doesn't fit your business in one way or another, and you'll find that it affects the rest of your business in a negative way. That might seem unrealistic, but it really isn't. One disorganized client slipping its schedule can force you to say no to a long time client with an atypical tight deadline, reducing what your income could have been. A slow payer at a bad time could force you to take on work that pays far less than your target rates but that quickly sends a check that might help reduce the cash shortfall.

When you provide a service, the customer comes first. But your business supports your life and even as clients come and go, you always have to be there. Make sure that you like the fit.

Danger of Over Eagerness

Writers are often an earnest lot, falling in love with stories, jumping for joy at the idea of an assignment, and ready to wear their hearts on their sleeves. Unfortunately, if you want to have a profitable writing business, this is a tendency that you have to correct - now.

If you find yourself doing any of the following:

• spilling details of your personal life as asides in your communications with clients
  
• adding smiley emoticons to your business emails
  
• spontaneously offering to turn articles in several days early
  
• forcing yourself to be jovial when talking to a client
  
• immediately responding to any email from a client, no matter what else you are doing
  
• wanting to become "best friends" with a client
  
• panicking because you sent a query a whole two days ago and you still haven't heard back
  
• sounding breathlessly enthusiastic

or if you do other things that could easily fall into such a list, then you're suffering from WPS - Writers Puppy Syndrome. Puppies are cute, they're fun, but you don't expect anything serious from them because ... well, because they're puppies.

The same thing goes in the writing business, just like in any other business. If people are so enthusiastic as to to bounce and beam, your inclination will likely be to find their care takers and seem them safely back into a room with soft walls. Think of this is a more common setting: dating. Do you now or did you ever get interested in someone who would follow you around, anxious for even slight amounts of attention? Probably not. You can't take someone seriously if they have no sense of self worth and dignity. That's one big reason why people who stand off a little have so much more of a draw.

Don't creep out your clients and prospects. Get yourself calm and centered before speaking with or writing to one. Remember that this is not the only fish in the business sea, and that you have other things you also need to do with your time. That's not to suggest being frosty or unaccommodating. But when you're interacting with others, be relaxed, self-aware, and yourself. You might find that suddenly you become far more attractive to those who need work done.

How Not to Tick Off Editors, Agents, and Others

Sally Wiener Grotta is a writer and photographer friend of mine who has a great blog entry on what not to say to editors and agents.

It's on the book end of things, but I think the comments are applicable to anything a writer does, whether book, magazine, corporate, or non-profit. Outside of the usual culprits - like "Don't screw up my name when sending something to me" - are some particularly relevant ones. For exmaple, the impulse to talk about yourself can be off-putting and can set off a red flag that you are going to be high maintenence. This is a perfect example of starting to understand your prospects and doing things to make them comfortable and happy. And when the prospects are happy, they're more inclined to give you assignments.